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CASE NO.: Appeal (civil)  2159 of 2008

PETITIONER: Himalayan Institute Hospital Trust & another

RESPONDENT: Mohit Kumar & Ors

DATE OF JUDGMENT: 27/03/2008

BENCH: R. V. Raveendran & P. Sathasivam

JUDGMENT: JUDGMENT O R D E R

Not reportable

CIVIL APPEAL NO 2159  OF 2008 (Arising out of SLP(C) No.463 of 2007            Leave granted. We have heard learned counsel for the parties.  

2.      The following three litigations are pending before the Allahabad High  Court, Lucknow Bench :  

(1)     Testamentary Case No.3 of 2003 for grant of probate, filed by  Dato Mohan Swami claiming to be the Executor under the alleged  Will dated 9.4.1996 of Swami Rama.  

(2)     Testamentary Case No.1 of 2004 for grant of letters of  administration in regard to estate of Swami Rama who died on  13.11.1996, filed by his son Mohit Kumar.  

(3)     Original Suit No.865 of 1997 filed by Mohit Kumar, Lilu Kumar  and Lt. General M.L. Dar (Retd.) and Himalayan Institute Hospital  Trust represented by a Presidential Body consisting of the said  three persons for a permanent injunction restraining defendants  therein from interfering with the functioning of Himalayan  Institute Hospital Trust and its said Presidential Body, and seeking  a declaration that nomination letter dated 5.11.1996 in favour of  Dato Mohan Swami and three others is null and void.  

3.      Himalayan Institute Hospital Trust (for short ’HIH Trust’) was  impleaded as fourth respondent in Test. Case No.1/2004. A learned Single  Judge of the Alalhabad High Court by order dated 8.9.2006 allowed an  application for deletion of fourth respondent  (HIH Trust) from the array of  parties in that case. He also rejected a subsequent application for recalling  the said order, by order dated 22.9.2006. The said orders were challenged by  the first respondent in two special appeals. A Division Bench of the High  Court allowed the special appeals by common order dated 5.12.2006 with  the following directions :

(a)     The Himalayan Institute Hospital Trust through "its presidential  body members" shall be impleaded as a party in Testamentary  Case No.1 of 2004.  

(b)     In matters where the said society (HIH Trust) is a party, both  the rival groups namely the group of Dato Mohan Swami and  three others, and the group of Mohit Kumar and two others will  be entitled to participate.

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(c)     The three cases (Testamentary Case No.3/2003, Testamentary  Case No.1/2004 and OS No.865/2007) shall be tried together by  recording common evidence and the three cases shall be  disposed of by common judgment and decree.  

The said order of the Division Bench is challenged by the HIH Trust  represented by Dato Mohan Swami, in this appeal by special leave.  

4.      After hearing the learned counsel, and considering the factual  background, and the nature of directions issued by the Division Bench, we  are of the view that the said order requires certain modifications to remove  the technical infirmities. This will also abate the anxiety expressed by the  parties regarding delay in disposal.  

5.      Accordingly, we issue the following directions in modification of the  impugned order of the High Court, with the consent of parties :  

(i)     Testamentary Case No.3/2003 and Testamentary Case No.1/2004   shall be tried together by the High Court. Common evidence shall be  recorded in the said two cases and they shall be disposed of by a common  judgment.  

(ii)    OS No.865/1997 shall be tried by the same Judge trying the said two  cases, simultaneously but separately without clubbing it with the other two  cases. To avoid any grievance of preference to a particular case, we request  the High Court that Testamentary Case No.3/2003 and Testamentary Case  No.1/2004 on the one hand and OS No.865/1997 on the other, to be disposed  of on the same date but by separate judgments.   

(iii)   If any party wants the evidence led in the testamentary cases, to be  read as evidence in the original suit or vice versa, appropriate application  may be made before the High Court for that purpose.  

(iv)    The High Court will endeavour to dispose of the three cases   expeditiously, preferably within six months.  

(v)     Dato Mohan Swami  (second appellant before us) shall enter  appearance in O.S. No.865/1997 where he is a defendant, on the next date of  hearing before the High Court, without further notice (as undertaken by his  counsel Sri Sanjeev Aggarwal).  

(vi)    In place of ’Himalayan Institute Hospital Trust through its presidential  body members’ impleaded as a party, the following two groups shall be  impleaded as respondent Nos. 4 and 5 in Testamentary Case No.1 of 2004 :

4.      4(a)    Dato Mohan Swami         4(b)    Vijendar Chauhan         4(c)    Vijay Dhasmana         4(d)    Vikram Singh   Claiming to constitute the presidential  body members of            Himalayan Institute Hospital Trust,            Jolly Grant, Dehradun.  

5.      5(a)    Mohit Kumar         5(b)    Lilu Kumar         5(c)    Gen. M.L. Dar (Retd.) Claiming to constitute the presidential  body members of  Himalayan Institute Hospital Trust, Jolly Grant, Dehradun. (vii)   Nothing stated by the High Court or by this Court shall be construed  as expression of an opinion on merits, or on any of the issues in the three  pending cases.

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6.      The appeal is accordingly disposed of. Parties to bear their respective  costs.